Subject matter(s): The Commission as Guardian of the treaty: Article 258 of the TFEU (ex Article 226 of the EC Treaty)

The background to the complaint

1. The complaint concerns the way the European Commission dealt with an infringement complaint concerning an alleged infringement of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive)[1].

2. The complainant has dual German and Belgian nationality. His wife is Lebanese. Between January and October 2008, the complainant submitted 7 infringement complaints to the Commission alleging that the UK, Ireland and Belgium infringed Article 5(2) of the Directive[2]. He pointed out, for instance, that the UK and Ireland illegally required a visa from his wife before she could enter the country. He underlined that they should have accepted her valid residence permit.

3. On 25 September 2009, the complainant lodged an initial complaint with the Ombudsman (2199/2009/KM) in which he alleged that the Commission was not taking his complaints seriously. The Ombudsman replied on 1 October 2009 stating that there were insufficient grounds for an inquiry, partly because the complainant had not indicated precisely what he considered the Commission to have done wrong, and partly because the period of one year for the Commission to deal with infringement complaints (as set out in point 8 of the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[3]) had not yet expired when the complainant lodged his complaint with the Ombudsman.

4. On 29 March 2011, the complainant submitted a new complaint (773/2011/OV) to the Ombudsman in which he indicated that the issues he originally complained about still persisted. The complainant argued that the Commission was not doing everything in its power to alleviate the problems and that nothing had actually changed since he was first confronted with the problems four years ago. His new complaint concerned 4 of the 7 infringement complaints.

The subject matter of the inquiry

5. On 12 April 2011, the Ombudsman asked the Commission to submit an opinion on the complainant's first allegation that it had not replied on the substance of his three infringement complaints, namely: SG/CDC(2008)A/5303, SG/CDC(2008)A/7022 and SG/CDC(2008)A/8172. As regards the complainant's second allegation that the Commission had not appropriately dealt with his fourth infringement complaint SG/CDC(2008)A/1076 against the UK (concerning the alleged illegal requirement of a visa for family members of EU citizens to enter the UK), the Ombudsman informed the complainant that there were still insufficient grounds for an inquiry, as the complainant merely argued, in a general way, that the Commission was not doing everything in its power to alleviate his problems and that the issues complained about persisted. On 31 May 2011, however, following further clarifications from the complainant on 12 April and 26 May 2011, the Ombudsman informed the complainant that there were sufficient grounds for an inquiry into his second allegation and therefore also asked the Commission for an opinion on this allegation.

6. On 3 July 2011, however, the complainant informed the Ombudsman that, following information received from the Commission with regard to replies to his infringement complaints sent to him a long time ago, but to an incorrect address, he only wished to maintain his second allegation concerning infringement complaint SC/CDC(2008)A/1076. The complainant considered that the replies from the Commission were triggered by the Ombudsman's intervention and thanked the Ombudsman for his inquiry so far. On 4 August 2011, the Ombudsman therefore wrote to the Commission to inform it that his inquiry was limited to the following allegation.

Allegation:

The Commission has not appropriately dealt with the complainant's infringement complaint SG/CDC(2008)A/1076.

The inquiry

7. The Ombudsman forwarded the complaint to the Commission for an opinion. The Commission sent its opinion on 19 October 2011. It was sent to the complainant, who submitted his observations on 28 October 2011.

The Ombudsman's analysis and conclusions

A. Alleged failure properly to deal with the infringement complaint

Arguments presented to the Ombudsman

8. The complainant alleged that the Commission had not appropriately dealt with complaint SG/CDC(2008)A/1076. The complainant stated that, in 2008, he learned that, contrary to the Directive, the UK requires family members of EU citizens to apply for a visa before entering the UK. He therefore submitted an infringement complaint to the Commission on 29 January 2008. On 30 January 2008, he received an acknowledgement of receipt that his complaint had been registered under reference number SG/CDC(2008)A/1076. By letter of 14 April 2008, the Commission informed the complainant that it had sent a letter to the UK authorities on 27 March 2007 inviting them to submit observations and that the UK had replied on 4 June 2007. The Commission further informed the complainant that it was evident that the problem was caused by an incorrect transposition of the Directive, and that the complainant's complaint would be taken into account within the framework of an overall examination of compliance of UK legislation with the Directive, which was under way. The complainant argued that this reply of 14 April 2008 was the only substantive reply he had received from the Commission. On 29 July 2008, the complainant asked for an update and on 11 August 2008, he received an acknowledgement of receipt indicating a new complaint number (SG/CDC(2008)A/6111), although he had not lodged a new complaint. There was, however, no substantive reply. On 17 September 2008, the complainant sent another reminder, pointing out that he wanted to travel to the UK with his wife. He received no reply and, for a while, he gave up on the idea of travelling to the UK. On 28 March and 26 April 2011, the complainant again asked for an update. The Commission replied on 26 April 2011 that it had had a bilateral meeting with the UK authorities and that it was finalising its assessment. On 11 July 2011, the Commission informed the complainant that it had initiated infringement proceedings against the UK and had sent a letter of formal notice. According to the complainant, the Commission did not explain what happened between April 2008 (the date of the Commission's first reply) and April 2011 (the date of the Commission's second reply). In the complainant's view, it therefore appeared that nothing happened during those 3 years.

9. In its opinion, the Commission stated that the complainant's complaint concerned the UK authorities' interpretation of Article 5(2) of the Directive which provides that "[f]amily members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement" (emphasis added). In his complaint of 4 April 2008, the complainant informed the Commission that the UK authorities interpreted the last sentence of Article 5(2) of the Directive in the sense that only the possession of a valid residence card issued by the UK exempted the third country family members of an EU citizen from the visa requirement.

10. In a letter of 14 April 2008, the Commission informed the complainant that it shared the complainant's interpretation of the Directive (i.e., that valid residence cards issued by other Member States also meet the requirements of Article 5(2)) and that it had already contacted the UK authorities in this regard. However, from the reply received, it was evident that the issue raised by the complainant was due to an incorrect transposition of the Directive into UK law. The Commission therefore informed the complainant that his complaint would be taken into account within the framework of the overall examination of compliance of the UK legislation with the Directive. According to the complainant, this letter was the last reply by the Commission as to his complaint. This is not true as the Commission wrote to the complainant several times between April 2008 and March 2011, when he lodged his complaint with the Ombudsman. The Commission's aforementioned correspondence with the complainant can be summarised as follows:

- On 23 September 2008 and 29 October 2008, the Commission sent two holding replies to the complainant in light of his numerous complaints concerning violations of EU law in multiple Member States;

- On 10 December 2008, the Commission adopted a report on the application of the Directive in which it underlined that it would increase its efforts to ensure its full and correct transposition;

- On 2 June 2009, the Commission sent an additional letter to the complainant informing him, among other things, that the issue raised in his complaint SG/CDC(2008)A/1076 would be raised in a bilateral meeting between the Commission and the UK authorities;

- On 17 August 2009, contrary to the complainant's description of the timeline, the complainant invited the Commission to provide an update on all of his complaints, including the one registered under reference SG/CDC(2008)A/1076;

- On 12 October 2009, the Commission replied to the complainant and drew his attention to the 2008 report and its plans to contact the national authorities of all Member States soon after, in order to obtain clarifications on the identified shortcomings in the transposition of the Directive;

- On 23 March 2010, the Commission sent a letter to the UK authorities listing all the shortcomings identified in the transposition of the Directive into UK law, including the issue raised by the complainant. A bilateral meeting with the UK authorities to discuss and clarify the shortcomings was held in London on 5 July 2010. The Commission asked the UK authorities to provide their written observations within eight weeks. The UK authorities sent their observations to the Commission on 24 January and 24 February 2011;

- After the written reply was analysed by the Commission, some issues remained unresolved. The Commission and the UK authorities discussed these issues thoroughly during several bilateral meetings, during which some issues were resolved. Nonetheless, a number of other issues raised by the complainant, including the incorrect transposition of Article 5(2), remained unresolved;

- On 28 March 2011, the complainant asked the Commission for an update. On 26 April 2011, the Commission informed him that a bilateral meeting had taken place and that the Commission was finalising its assessment;

- On 22 June 2011, the Commission sent a letter of formal notice to the UK authorities. The letter of formal notice underlined the existence of nine remaining problems relating to the transposition or application of the Directive. Point number two of the letter concerned the issue mentioned in the complainant's complaint;

- On 10 July 2011, the complainant sent a letter to the Commission, asking for details of the progress made by the Commission between 2008 and 2011. By letters of 11 and 28 July 2011, the Commission informed the complainant of the sending of the letter of formal notice mentioned above and promised to keep him updated.

- On 4 August 2011, the complainant sent a letter to the Commission asking it to clarify what it had done between April 2008 and April 2011 to resolve the problem with the UK visa rules. On 8 September 2011, the Commission replied to the complainant and described once again the measures which had been taken to resolve the problem.

11. According to the Commission, the complainant's allegation that the Commission had not properly dealt with his complaint is unfounded. Leaving aside the acknowledgement of receipt of his complaint in 2008, the Commission sent nine letters to the complainant between April 2008 and September 2011, in which it clarified both the substance of the issue in question and the progress made.

12. As regards the time which elapsed between the lodging of the complaint in 2008 and the sending of a letter of formal notice to the UK authorities in relation to the issue raised in the complaint, the Commission stressed that it progressed with the assessment of compliance of UK law with the Directive without unreasonable delay. Following the entry into force of the Directive on 30 April 2006, the UK authorities had not provided notification of all the national measures adopted to comply with the Directive. The Commission therefore initiated infringement proceedings against the UK for their failure to communicate all the transposing measures. Those proceedings were dropped in November 2008, following notification of the missing provisions of national law. It was only at that moment that the Commission was in a position to start assessing comprehensively whether the UK laws had correctly transposed the Directive, as non-communicated pieces of UK legislation might have affected the Commission's initial (April 2008) assessment of the transposition of Article 5(2) of the Directive.

13. The first comprehensive summary of the transposition of the Directive by Member States was done in December 2008 in the Commission's report on the application of the Directive[4]. This report concluded that the overall transposition of the Directive was rather disappointing and that problems with entry visas were among the most persistent violations of the rights of EU citizens. In July 2009, the Commission issued guidelines[5] for better transposition and application of the Directive. In these guidelines, the Commission expressly clarified that residence cards issued under Article 10 of the Directive to a family member of an EU citizen residing in the host Member State, including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State. In light of the seriousness of transposition issues in various Member States, the Commission decided to take a global approach and initiated bilateral discussions with all 27 Member States on the transposition of the whole Directive (the so-called "package approach"), rather than initiating infringement proceedings on individual issues, which would lead to a serious increase in the amount of similar proceedings initiated. With regard to the UK, given that its authorities amended their laws transposing the Directive in July 2009, the assessment was concluded in March 2010 when the Commission addressed a letter to the UK authorities, listing more than 40 issues where the Commission considered that the UK laws were not in line with EU law. The list of issues also included the point made by the complainant. Between July 2010 and June 2011, the pre-infringement phase took place and a series of bilateral meetings between the Commission and the UK authorities were held to address the identified problems of transposition. The discussions were largely successful but, as not all issues were satisfactorily addressed by the UK authorities, a letter of formal notice was sent to the UK authorities in June 2011. The letter referred to the matter at issue in the complainant's complaint.

14. In his observations, the complainant stated that he understood that the matter was complicated, technical and that, therefore, some time was needed to deal with it. He stated that, although he was not experienced in legal affairs, he tried to do his best to point out the parts of the Directive which negatively affected his life and his wife's life. The issue in question also affects several thousand EU citizens in the same situation. The complainant pointed out that, ever since his wife joined him in the EU in 2007, they had encountered visa problems, making it impossible for them to move as freely as they would have liked within the EU. The complainant underlined that he had lodged his complaint in January 2008. Therefore, it was very frustrating that in October 2011, nearly 4 years later, there was still no hint of a solution. This significantly reduced the complainant's confidence in the EU authorities. He added that his wife had now become a Belgian citizen, which alleviated their problems. Therefore, since the complainant and his wife are no longer personally affected, he stated that the Ombudsman could close his case. The complainant added that he would follow any further developments through the news media.

The Ombudsman's assessment

15. The Ombudsman first notes that the Commission did not remain inactive with regard to the handling of the complainant's infringement complaint. Apart from the acknowledgement of receipt of 30 January 2008, the Commission sent a total of 6 replies to the complainant between 14 April 2008 and 26 April 2011, of which the four replies of 14 April 2008, 2 June and 12 October 2009, and 26 April 2011 were substantive replies. The Commission sent another 3 replies to the complainant between 26 April and 8 September 2011[6].

16. The complainant has indicated that, given that he and has wife are no longer personally affected by the alleged infringement of the Directive, the Ombudsman can close the inquiry. The Ombudsman therefore considers that no further inquiries into the present complaint are justified. In particular, the Ombudsman will not investigate whether, in the present case, the Commission dealt with the infringement complaint in accordance with the various principles set out in the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No further inquiries into the present complaint are justified.

The complainant and the Commission will be informed of this decision.

P. Nikiforos Diamandouros

Done in Strasbourg on 18 January 2012

[1] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 L 158, p. 77.

[2] Article 5(2) of the Directive provides that "[f]amily members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement" (emphasis added).

[6] It appears that the complainant did not receive many of the replies which the Commission sent to him. The Ombudsman notes that the complainant changed his address several times (from Ireland to Belgium, and from Belgium to Switzerland) since he lodged his infringement complaint. He also uses three e-mail addresses simultaneously. The Commission's replies were sent to his addresses in Ireland, Belgium and Switzerland and/or to one of the three e-mails addresses.